Retirement benefits, pensions, 401k, 403b, IRAs and other retirement plans are subject to distribution through divorce proceedings. Regardless of which party obtained the retirement benefits, generally speaking, any retirement benefits that are accumulated during marriage, become marital property and are subject to distribution. Any retirement benefits that are accumulated prior to marriage are generally awarded to the party that accumulated that retirement benefit.
In addition, if the parties are separated for even an extended period of time, but remain married, generally speaking, the retirement benefits accumulated during the entire time of marriage, not only the time the parties reside together would be subject to distribution between the parties. As a general rule, retirement benefits, like other benefits, are divided one half to each party during the term of the marriage. For example, if parties have been married for 10 years, but each of the parties had retirement benefits of 20 years with an employer, that is 10 years prior to marriage, each party might be entitled to one half of 10/20, or one half, of the retirement benefit. The retirement benefits accumulated prior to the marriage, would be awarded to the party in whose name those benefits were obtained.
Retirement benefits are able to be split generally, without tax consequence, by either a letter of instruction, if there is a IRA or what is called a Qualified Domestic Relations Order (QDRO) a Court Order, which is entered following the entry of a Judgment of Divorce.
Merrill Gordon is an Oakland County attorney with more than 35 years’ experience in divorce and family court proceedings along with all manners of civil actions. He is also a court-appointed mediator in Oakland and Wayne counties and has received an AV peer review rating, the highest available.
He is a graduate of Michigan State University and the Thomas Cooley Law School. He was admitted to State Bar of Michigan and all Michigan State and Federal Courts in 1981, and the United States Sixth Circuit Court of Appeals in 1985. He is also a member of the State Bar of Michigan, Oakland Country Bar Association, American Bar Association and the Mediation Tribunal Association.
For a free initial consultation, contact Merrill Gordon at (248) 626-3000 or via email at mgordon@merrillgordon.com.
